Invited review J R Army Med Corps: first published as 10.1136/jramc-2018-001062 on 24 January 2019. Downloaded from US military medical ethics in the George J Annas,1 S Crosby1,2

1Center for Health Law, Ethics Abstract Key messages and Human Rights, Boston Military medical ethics has been challenged by the University School of Public post-11 September 2001 ’War on Terror’. Two recurrent Health, Boston, Massachusetts, ► The post-9/11 "war on terror" has deformed questions are whether military physicians are officers first ► USA military medical ethics in the US. 2Department of Medicine, or physicians first, and whether military physicians need a ► The US military has explicitly rejected the Boston University School separate code of ethics. In this article, we focus on how ► WMA's ethical rules regarding hunger strikers of Medicine, Boston, the War on Terror has affected the way we have addressed Massachusetts, USA in detention. these questions since 2001. Two examples frame this ► The US should re-establish medical ethics rules discussion: the use of military physicians to force-feed ► Correspondence to that explicitly permit military physicians to put hunger strikers held in Guantanamo Bay prison camp, Dr George J Annas, Center for the interests of their patients first. Health Law, Ethics and Human and the uncertain fate of the Department of Defense’s Rights, Boston University School report on ’Ethical Guidelines and Practices for US Military of Public Health, Boston, MA 02118, USA; annasgj@​ ​bu.edu​ Medical Professionals’. vaccines without their consent in the event of a 4 Received 6 September 2018 chemical or biological attack. But mostly mili- Revised 11 December 2018 tary medical ethics became the subject of intense Secretary of Defense wrote to all Accepted 12 December 2018 discussion only after 9/11. The baseline for military Published Online First members of the Department of Defense (DoD) in medical ethics was set by the coincidental publica- 24 January 2019 2017 with the subject line, ‘Ethical Standards for All 1 tion by the US military of a 2-volume set, Military Hands’. The core of his message: Medical Ethics, in 2003, which remains the most I expect every member of the Department to play authoritative US publication on this subject.5 the ethical midfield. I need you to be aggressive and In this article we focus on two specific topics show initiative without running the ethical sidelines, to illuminate the ‘physician first problem’, and where even one misstep will have you out of bounds. arguments for and against developing a separate copyright. I want our focus to be on the essence of ethical con- medical ethics code for military physicians. The duct: doing what is right at all times, regardless of first example is the most publicly discussed mili- the circumstances or whether anyone is watching. tary medical ethics controversy of the past 15 years, (Emphasis added) the use of military physicians to force-feed hunger 6 The Secretary’s admonishment was in sharp strikers in Guantanamo Bay. The second is one of contrast to that of Michael Hayden, former the least publicly discussed ethics reports (whose future is still uncertain), the Defense Health Board’s

director of the National Security Agency, and the http://militaryhealth.bmj.com/ Central Intelligence Agency, who told his agents 2015 report on ‘Ethical Guidelines and Practices for 7 after the 9/11 attacks: I want you to play the entire US Military Medical Professionals’. [ethics] field to the limits, ‘I want to see chalk dust on [your] cleats.’2 Mattis also expressed the need Prison hunger strikes and medical for training in ethical dilemma resolution, as well as ethics knowing what it means to live by ‘an ethical code’, The War on Terror incited a vigorous response and follow the military’s Oath of Office. The Mattis that could not be held in check by existing ethics letter treats all military and civilian personnel in codes. After 9/11, there were scandals at Abu the DoD the same, and holds all of them to the Ghraib, abuses at Bagram Air Base in Afghanistan same ethics standard. His message has been widely and reports that psychologists at Guantanamo praised. Nevertheless, for physicians (and other Bay prison were participating in interrogations. In on September 27, 2021 by guest. Protected healthcare professionals) serving in the US military, response, the Assistant Secretary of Defense for it begs at least two persistent questions: (1) Are Health Affairs, William Winkenwerder, decided physicians in the US military physicians first or offi- to consolidate all ‘principles and procedures for cers first? and (2) Should military medical ethics be US military medical personnel when working spelled out in a separate code? with detainees under control of US armed forces.’ The question of whether the US military itself When the principles were announced, in 2006, needs new standards of ethics has been raised peri- the most controversial proved to be the role of © Author(s) (or their military physicians in force-feeding competent employer(s)) 2019. Re-use odically since World War II. For example, in 1955 permitted under CC BY-NC. No President Dwight D Eisenhower issued a new ‘Code hunger strikers at Guantanamo. The new Instruc- commercial re-use. See rights of Conduct for Members of the Armed Forces of the tion was entitled ‘Medical Program Support and permissions. Published United States’, in reaction to the ‘brainwashing’ for Detainee Operations’ and the hunger strike by BMJ. of American prisoners of war during the Korean section provided that, 3 To cite: Annas GJ, Crosby S. conflict. One of the few pre-9/11 medical ethics In the case of a hunger strike, attempted suicide, or J R Army Med Corps disputes involved the plan to provide US troops other attempted serious self-harm, medical treatment 2019;165:303–306. in the first with experimental drugs and or intervention may be directed without the consent

Annas GJ, Crosby S. J R Army Med Corps 2019;165:303–306. doi:10.1136/jramc-2018-001062 303 Invited review J R Army Med Corps: first published as 10.1136/jramc-2018-001062 on 24 January 2019. Downloaded from

of the detainee to prevent death or serious harm. Such action must at Guantanamo for 12 years, was never charged with a crime be based on a medical determination that immediate treatment or and was cleared for release in 2009. Judge Kessler initially intervention is necessary to prevent death or serious harm, and, ruled that all forced cell extractions and force-feeding must in addition, must be approved by the commanding officer of the 8 end, the first time such an order had been issued in the history detention facility… (Section 4.7.1, emphasis added) of force-feeding at Guantanamo. The case, however, was This provision is confusing at best. Competent hunger strikers complex: Dhiab was not opposed to voluntary enteral feeding are engaged in a protest, they are neither suicidal nor mentally at the hospital, only to being force-fed in a painful manner in ill. Lumping them into these latter two categories seems a restraint chair. The DoD remarkably refused this request. designed to justify some sort of forced treatment, here forced Judge Kessler described the DoD’s refusal as presenting her feeding. But this directly contravenes the World Medical Asso- with an anguishing Hobson’s choice: to reissue another ciation’s (WMA) Declaration of Malta which prohibits physi- temporary restraining order against force-feeding ‘despite the cians from force-feeding competent hunger strikers.9 This very real probability that Mr Dhiab will die…or allow medical matters because to the best of our knowledge, this is the only actions to keep Mr Dhiab alive, but at the possible cost of great time US military medical ethics standards have been adopted pain and suffering.’ She decided to permit the physicians at that explicitly permit physicians in the military to act in a Guantanamo to resume force-feeding because she did not manner that contravenes applicable worldwide medical ethics believe she had the authority to prohibit it.13 An appeals court standards.10 later ruled that she did in fact have oversight authority.14 In a 7 June 2006 press conference on the new Instruction, Dhiab’s case illustrates many of the elements that are Winkenwerder acknowledged this conflict, but sought to wrong with the Guantanamo force-feeding regime, and why it downplay its importance, saying: ‘We have a policy that is to conflicts with basic medical ethics: (1) the prisoner is compe- preserve life. That policy is an ethical policy. It’s in the best tent and should have the right to refuse treatment; (2) forced interests of the individual who is a hunger striker, for his life to feeding can be ordered by a non-medical person (the base be preserved…’ On medical ethics specifically, Winkenwerder commander) usually long before the prisoner is in any medical said: danger from his hunger strike; (3) the prisoner is brought to the restraint chair violently, by forced cell extraction; (4) naso- We view what we are doing as largely consistent with [the Malta] gastric feeding takes place in up to 8-point restraints (feet, declaration… Malta permits feeding when the hunger striker has lapsed into a coma and is impaired and unable to make a decision. wrists, chest, shoulders and sometimes head) in a ‘restraint It’s our view that we’re basically along the same ethical tenets, same chair’; and (5) this method of force-feeding violates Malta and ethical line of thinking, we just don’t want to have someone get to Common Article 3 of the Geneva Conventions which prohibits 15

death or near death before we seek to save them. And that only cruel, inhuman and degrading treatment. copyright. makes good sense.11 The cruelty of this method would be apparent to anyone seeing the videotapes of the forced cell extractions and the Winkenwerder was able to argue that his new policy was restraint chair nasogastric feedings. Judge Kessler ordered following the ‘spirit’ of Malta because the 1992 version of these videotapes be made public, but ultimately an appeals Malta, still in effect in the summer of 2006, arguably left a large court ruled that the DoD need not release them, because degree of discretion in the hands of physicians. To eliminate they could be used in terrorist ‘propaganda and in carrying any ambiguity, the WMA amended its Declaration of Malta out attacks on Americans’. Before Judge Kessler could hold in the fall of 2006 to explicitly always prohibit force-feeding another hearing on Dhiab’s treatment, Dhiab, a Syrian, was http://militaryhealth.bmj.com/ of a competent hunger striker: ‘Forcible feeding is never ethi- released to Uruguay, where he had no family or friends. He is cally acceptable. Even if intended to benefit, feeding accompa- no longer in Uruguay, but his current whereabouts is unknown. nied by threats, coercion, force or use of physical restraints is a As of this writing, Guantanamo physicians continue to be form of inhuman and degrading treatment.’ The 2017 version, governed by the 2006 Instruction, and continue to force-feed which includes new details on the use of advance directives, hunger strikers in restraint chairs, although there have been a retains this absolute prohibition. series of standard operating procedures issued to govern force- A 2009 report on Guantanamo, commissioned by President feeding at Guantanamo, and the issue remains the single most and led by Patrick Walsh, concedes controversial military medical ethics issue in our post-9/11 War that the military physicians at Guantanamo do not follow on Terror.16 the Declaration of Malta. Instead, the report references the 2006 Instruction and the US Bureau of Prisons regulations. on September 27, 2021 by guest. Protected Both of these documents permit force-feeding to prevent self- The Health Ethics Board report harm. The report concedes that military physicians cannot In May 2011, the Assistant Secretary of Defense for Health, both force-feed competent hunger strikers and simultane- Jonathan Woodson, asked that the Defense Health Board be ously follow medical ethics. Nonetheless, the report makes no tasked with reviewing ‘military medical professional practice attempt to determine when, if ever, military physicians need policies and guidelines’. Two questions were to be addressed: not follow basic principles of medical ethics (eg, respect for (1) ‘How can military medical professionals most appropri- patient autonomy).12 ately balance their obligations to their patients against their The constitutionality of force-feeding at Guantanamo did obligations as military officers?’ and (2) ‘How much latitude not get a full hearing in a US federal court until 2014. The should military medical professionals be given to refuse partic- courts generally try not to get involved in military affairs, even ipation in medical procedures…with which they have ethical those involving non-consensual experimentation on service reservations or disagreement?’ The Defense Health Board, personnel. Nonetheless, sometimes they have little choice, and chaired by former American Medical Association (AMA) pres- this is one of them. Judge Gladys Kessler was asked to prohibit ident Nancy Dickey, delegated the assignment to its Medical the forced cell extraction followed by forced feeding in a Ethics Subcommittee which, under the leadership of Adil restraint chair of Abu Wa’el Dhiab. Dhiab had been a prisoner Shamoo, began meeting in August 2013. Its final report,

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‘Ethical Guidelines and Practices for US Military Medical much more strongly that the ‘critical issue largely absent’ from Professionals’, was adopted by the Defense Health Board and the report is the post-9/11 treatment of War on Terror suspects released in March 2015. The report is a solid piece of work, and wartime detainees, saying: ‘We are deeply troubled by and we, among others, urged the DoD to adopt it quickly. the absence of specific, substantial information and detailed In June, 2015, we (together with Gerald Thomson, former recommendations that speak to the national security detention Dean of Columbia University School of Medicine) wrote then context—recommendations that address an era of abuse that Secretary of Defense Ashton Carter to request a meeting with has now been studied, documented, and widely publicized, him to discuss the report.17 In our letter, we highlighted what including by Congress.’ The letter writers noted with approval we still think is the most important conclusion of the report, that the report would outlaw the force-feeding of Mr Dhiab, recommendation 2: ‘Throughout its policies, guidance, and discussed earlier. Most importantly, the letter writers suggested instructions, DoD must ensure that the military health care DoD actively support a series of specific ethical principles, professional’s first ethical obligation is to the patient.’ We regarding national security detention, including: argued, ‘This is really all that has to be said about medical Physicians should not be involved in abusive practices, including ethics [in the military] and all that should be said.’ This state- participating in, being present for, condoning or facilitating torture ment, however, is a gross oversimplification: much more does or cruel, inhuman or degrading treatment. need to be said. Physicians should not be directly involved in interrogation, includ- First, the report recommended the creation of a new explicit ing conducting, participating in, or monitoring interrogation. code of ethics for healthcare professionals in the military. In Physicians must maintain the confidentiality of medical informa- view of the confusion illustrated in the force-feeding of mili- tion and not provide medical information for use in torture, cruel, tary prisoners, this seems reasonable. On the other hand, we inhuman or degrading treatment, or any interrogation. believe that medical ethics is not employment bound, but Physicians must not treat prisoners for the purpose of returning universal. In this context, an additional code that says any them to interrogation; torture; or cruel, inhuman or degrading more than that ‘the military physician’s first ethical obligation treatment. is to the patient’ could add more confusion than illumination. Physicians must report torture, abuse, or coercive treatments in- Nonetheless, military physicians are likely to run into at least cluding those related to interrogation. some circumstances that they would never face outside of the Physicians must have clinical independence in treating detainees. military, and it is sensible to have more specific ethical guid- ance for these challenges, although not a separate general code A few months later, in December 2015, we got a response to the of ethics. The report’s recommendation 3, that commanders 7 October letter from Woodson (who requested the report).22 ‘should excuse health professionals from performing medical Woodson assured us that the report was being reviewed by the copyright. procedures that violate their professional codes of ethics…’ we Department’s new ‘Medical Ethics Integrated Product Team’, think is especially useful in this context. This is because it is and that its findings are due to him by the end of the year the non-medical commanders, who are unlikely to appreciate (2015), and ‘I will carefully consider them before I develop my the role of medical ethics in a physician’s life, are most likely plan of action.’ That was almost 3 years ago. Woodson has to ask military physicians to violate medical ethics. Accord- retired from his job at and returned to academia ingly, educating commanders about medical ethics may be (at Boston University), and no follow-up has been reported. more effective than further educating military physicians. It is In May 2016, the Chair of the Subcommittee, Adil Shamoo,

also worth underlining that when commanders order military wrote an essay for the Hastings Center which he entitled ‘US http://militaryhealth.bmj.com/ physicians to act outside the realm of medical ethics, it is not Military Medical Ethics Guidelines in Limbo’,23 and limbo that the physician experiences ‘divided loyalty’. Rather it is seems to be where they currently reside. They are not perfect, more accurate to describe the commander as engaging in ‘dual but they nonetheless are helpful and should be adopted. use’ of military physicians: for example, as in Guantanamo, Shamoo’s bottom line needs to be emphasised not just by the using physicians as physicians and as part of the prison’s guard Assistant Secretary for Medical Affairs, but by Secretary Mattis 18 19 force or interrogation team. as well: ‘Health care professionals should have the freedom to Finally our letter emphasised what the report mentioned follow their conscience and their professional association’s code only in passing, the elephant in the room (the continuing of ethics during their service in the military.’ This position also force-feeding of hunger strikers at Guantanamo). This was, answers both of the questions we began with: military physi- we believe, the primary reason for doing the report at all. In cians should always be free to follow universal medical ethics, on September 27, 2021 by guest. Protected our words, ‘The most critical area of failure of military medical and no separate ‘military’ medical ethics code is needed. ethics has been in responding to hunger strikes, and if we expect our military physicians and health care professionals to follow medical ethics, we must put a system in place that not only Conclusion permits ethical behavior, but supports it.’ Such a system is not It seems reasonable to conclude that medical ethics in the suggested in the report, but it should be developed. ‘Ethics, US military has been deeply compromised by the reaction of even explicit patient-centered ethics, without a well-devel- the US civilian and military leaders to the 9/11 attacks. The oped and understood implementation strategy, will only be continuing controversy, both in the US military and in the US window-dressing.’ Woodson responded to our letter almost courts, involving rules for the force-feeding of military pris- immediately, writing, the Department is reviewing the report oners, seems incapable of resolution in the context of our ‘carefully and methodically…’20 continuing ‘War on Terror’. As long as preventing ‘another A few months later, on 7 October 2015, we wrote another 9/11’ is seen as more important than following principles letter to Secretary Carter, this one joined by a who’s who of of medical ethics, the US military will not be able to move leading civilian physicians, including past presidents of the beyond its post-9/11 antiterrorist ethics. The future should American Psychiatry Association, the American College of be one in which military physicians never question that they Physicians, the WMA and the AMA.21 This letter emphasised are physicians first, bound by universal medical ethics. Under

Annas GJ, Crosby S. J R Army Med Corps 2019;165:303–306. doi:10.1136/jramc-2018-001062 305 Invited review J R Army Med Corps: first published as 10.1136/jramc-2018-001062 on 24 January 2019. Downloaded from this precept, force-feeding of competent hunger strikers by 4 Annas GJ. Protecting soldiers from friendly fire: the consent requirement for using physicians is categorically prohibited. The Shamoo Ethics investigational drugs and vaccines in combat. Am J Law Med 1998;24:245–60. 5 Ethics MM. Military medical ethics (Beam TE, Sparacino LR, eds) 2 vol., USUHS, report should be officially adopted along with the institutional Bethesda,MD, 2003. N Engl J Med 2005;352:312–4. support required for its implementation. This could be at least 6 Annas GJ. Worst case bioethics: death, disaster, and public health. New York: Oxford one good thing that comes out of the War on Terror. U. Press, 2010: 59–74. 7 2019. Available: https://goo.​ ​gl/JBqs7Z​ 8 DoD instruction, medical program support for detainee operations, No. 23120.08E, Correction notice This article has been corrected since it was published Online June 6. 2006. First. The article was made Open Access and copyright licence updated to CC-BY-NC. 9 World Medical Association. Declaration of Malta on Hunger Strikes, adopted Nov. A disclaimer was also added to the article. 1991. Available: https://www.wma.​ ​net/policies-​ ​post/wma-​ ​declaration-of-​ ​malta-on-​ ​ Contributors The authors contributed equally in the preparation of this hunger-strikers​ manuscript. 10 Institute of medicine, military medical ethics: issues regarding dual loyalties. , DC: Academies Press, 2009. Funding The authors have not declared a specific grant for this research from any 11 June 7, 2006 Winkenwerder Press conference (transcript has been removed from the funding agency in the public, commercial or not-for-profit sectors. internet; copy available from the authors). Disclaimer The views expressed in this article are those of the authors and do 12 Rubenstein LS, Annas GJ. Medical ethics at Guantanamo Bay detention centre and in not reflect the official policy or position of the US Department of Defense or the US the US military: a time for reform. The Lancet 2009;374:353–5. Government. 13 Savage C. Judge allows force-feeding of detainee at Guantanamo. New York Times, 2014. Competing interests None declared. 14 Savage C. Appeals court allows challenges by detainees at Guantanamo prison. New Patient consent Not required. York Times, 2014. 15 Annas GJ, Crosby SS, Glantz LH. Guantanamo Bay: a medical ethics-free zone? N Engl Provenance and peer review Not commissioned; externally peer reviewed. J Med 2013;369:101–3. Open access This is an open access article distributed in accordance with the 16 E.g., Joint Task Force Guantanamo Bay, Joint Medical Group, Medical Management of Creative Commons Attribution Non Commercial (CC BY-NC 4.0) license, which Detainees on Hunger Strike, SOP: jtf-jmg #001, March 5 2013. permits others to distribute, remix, adapt, build upon this work non-commercially, 17 June 2015 letter on file with authors. and license their derivative works on different terms, provided the original work is 18 Annas GJ. American vertigo: ’dual use’,’ prison physicians, research, and Guantanamo. properly cited, appropriate credit is given, any changes made indicated, and the use Case West Res J International Law 2011;43:631–50. is non-commercial. See: http://​creativecommons.org/​ ​licenses/by-​ ​nc/4.​ ​0/. 19 Miller S, Selgelid MJ. Ethics and the dual-use dilemma in the life sciences (in) Allhoff F. In: Allhoff F, ed. Physicians at war: the dual-loyalties challenge. Springer, 2008: 195–211. 20 Letter on file with authors. References 21 October 7, 2015 Letter on file with authors. 1 Jim Mattis letter of August 17. 2017. Available: https://​dod.​defense.​gov/./​1/./​Ethical-​ 22 December 15, 2015 Letter on file with authors. Standards-for-​ ​All-Hands-​ ​SecDef-04-​ ​Aug-17​ 23 Shamoo AE. U.S. military medical ethics guidelines in limbo, Hastings Center blog.

2 Hayden M. Playing the edge: American Intelligence in the Age of Terror 2016. Available: https://www.​thehastingscenter.org/​ ​u-s-​ ​military-medical-​ ​ethics-guidelines-​ ​ copyright. 3 Eisenhower PDD. Executive order 10631, Auf. 17 1955. in-limbo/​ http://militaryhealth.bmj.com/ on September 27, 2021 by guest. Protected

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